01a53577
10-27-2005
Cort Mitchell, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Cort Mitchell v. Department of the Air Force
01A53577
October 27, 2005
.
Cort Mitchell,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A53577
Agency No. 9R1M05046L05
DECISION
In his complaint, complainant alleged that he was subjected to
discrimination, in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. Sec. 2000e et seq., on the bases of
race (African-American), national origin (African), and reprisal for
prior EEO activity when:
his request for administrative leave to prepare for a hearing before a
Commission administrative judge was denied; and
his request that management initiate a Request for Personnel Action for
an unrecorded detail was denied.
The agency dismissed claim 1, pursuant to 29 C.F.R. Sec. 1614.107(a)(1)
for failure to state a claim. This was error. Claims concerning the
denial of official time state a claim. EEOC Regulations require agencies
to grant complainants "a reasonable amount of official time, if otherwise
on duty, to prepare the complaint.... " 29 C.F.R. Sec. 1614.605(b). The
Commission has the authority to remedy such regulation violations
without a finding of discrimination. See Edwards v. United States
Postal Service, EEOC Request No. 05960179 (Dec. 23, 1996); Edwards
v. United States Postal Service, EEOC Request NO. 05950708 (Oct. 31,
1996). These claims should not focus on whether the agency's motivation
was discriminatory. As a result, the agency should not process the
complaint pursuant to 29 C.F.R. Sec. 1614.108, but rather should focus
on the agency's justification for denying complainant a reasonable amount
of official time.
The agency dismissed claim 2, pursuant to 29 C.F.R. Sec. 1614.107(a)(1)
for failure to state a claim and 29 C.F.R. Sec. 1614.107(a)(9) for abuse
of process. This too was error. The agency argues that it was not
required to initiate a Request for Personnel Action because complainant
�never made the written request with supporting documentation through
the chain of command as he was repeatedly advised to do.� Agency Brief
at 5. This argument improperly addresses the merits of complainant's
allegations. The facts alleged in claim 2 are sufficient to state
a claim since complainant has alleged an injury or harm to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
The agency also dismissed claim 2 on the alternative grounds that
it represented an abuse of the EEO process. As support for this, the
agency cites a decision by an EEOC Administrative Judge (AJ) in another
case brought by complainant dismissing the complaint on the grounds that
complainant was abusing the EEO process. The AJ found that:
The Complainant has a history of multiple complaint filings; he is
making allegations that are similar or identical to prior complaints,
lack specificity and involve similar matter previously resolved; and,
he is and has overburdened the EEO complaint system.
We conclude that on the record before us, the agency has not made the
necessary showing to justify dismissal for abuse of process. The events
complained of in the instant complaint occurred after the filing of the
complaint that was dismissed by the AJ and thus could not be duplicative
of earlier allegations. The conclusions reached by the AJ may have
been supported by the record in that case, but they are not binding in
this case. The agency has not provided the type of detailed information
needed to bar complainant from the administrative EEO process on the
grounds of abuse of process.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. Sec. 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. Sec. 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. Secs. 1614.407, 1614.408, and 29 C.F.R. Sec. 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. Secs. 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. Sec. 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days
of receipt of another party's timely request for reconsideration. See
29 C.F.R. Sec. 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. Sec. 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. Sec. 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 27, 2005
__________________
Date